— The fact that a defendant has applied for the benefit of the bankrupt law, or been declared a bankrupt, will not authorize the continuance or abatement of a suit pending against him; nor will it warrant a Court issuing an ordinary execution against a party thus situated, in quashing it. The cases cited by the plaintiff’s counsel, and a decision at this term, very satisfactorily show such to be the law. It is only after the defendant has obtained his final discharge, that he can thus ask the Court to arrest proceedings against him ; for until then, it cannot be known that he will successfully prosecute his suit in bankruptcy.
It may be well questioned whether it is not allowable to sue out a ca. sa. upon an affidavit of fraud, even against a certificated bankrupt, and whether, in orderto his release, it is not *660necessary that he should adopt the course provided by the statute, to try the question of fraud vel non. But, be this as it may, it is clear that Jones was liable to arrest on the ca. sa., and that the constable has not excused the performance of his duty.
From this view it results, that the County Court erred; its judgment is consequently reversed and the cause remanded.